Downing v. Donegan (1905) · DecisionDepot

Downing v. Donegan

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Oct 7, 1905 No. No. 73.Published

Before: Gray, Smith

AI Brief

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Holding. A failure to make findings on affirmative defenses is not grounds for reversal unless the record shows evidence was introduced to support those issues, and a judgment may be modified to correct errors in the calculation of the amount due.

Issues

Whether the trial court's failure to make findings on affirmative defenses constitutes reversible error.
Whether findings outside the scope of the pleadings require reversal of the judgment.
Whether a judgment may be modified to correct an error in the calculation of the amount due.

Disposition. remanded with directions to modify

Quotations verified verbatim against the opinion

“The case is remanded to the lower court, with directions to modify the judgment as above indicated; and as thus modified it will stand affirmed.”

Synopsis

The facts are stated in the opinion of the court.

Opinion — Smith

SMITH, J.

Appeal from a judgment for the plaintiff. This is a suit by the assignee of a note of date May 9, 1898, executed by the defendants to one Joyce, the plaintiff’s assignor, for the sum of twelve hundred dollars, with interest at the rate of eight per cent per annum from date, com

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pounded- quarterly. The complaint alleges that no part of said promissory note, or the interest thereon, has been paid, and that the amount thereof, with interest, is now due and owing from the defendants. The answer denies these allegations, or that there is due to the plaintiff the amount claimed or any amount, and further alleges that the amount mentioned in the note, with interest, has been fully paid and discharged. There is also what is called a “supplemental and amendatory and additional answer, ’ ’ alleging that the note executed to Joyce was secured by a chattel mortgage upon certain horses; and also setting up the equitable defense stated below. This document, as it is written, is without coherence or sense, by reason of the words “plaintiff” and ■“plaintiff and his wife” being written therein, instead of the words “defendant” and “defendant and his wife,”—which were plainly intended. Correcting it in this respect, it appears from the allegations therein contained that certain lands of the defendants mortgaged to one Hawkmson had been sold under foreclosure to the mortgagee, and that there was an agreement between defendant and Joyce for the latter to redeem from the sale, and thus to acquire title and to hold the same as an additional security for the note in suit and the money paid by him for redemption. It is further alleged that Joyce sold the property for the sum of sixty-five hundred dollars, which he has kept for his own use. It does not appear what amount was paid by Joyce for the redemption. But it is alleged, in effect, that at the time of the sale the amount due on the note did not exceed the sum of five hundred dollars, and that the proceeds of the sale were sufficient to satisfy the defendant’s indebtedness to the plaintiff, and leave the latter indebted to the former; and, in the absence of special demurrer, this must be regarded as sufficient.

The findings of the court are, in effect: That the note sued on was executed by the defendants to Joyce as

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Concurrence — Gray

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GRAY, P. J., concurring.

I concur in the judgment for ' the following reasons:—

The due execution of the note in suit, and its assignment to plaintiff, and that the latter is the “owner and holder” thereof, is admitted by the defendants’ failure to deny the same. Inasmuch as the execution of the note and ownership in plaintiff were admitted by the pleadings, if the case had been submitted without any evidence the plaintiff would have been entitled to a judgment for the principal and interest of his note. The burden was on defendants to prove their affirmative defense as to the trust fund. It was also on them to prove their affirmative defense of payment. It is held that while the plaintiff must allege nonpayment in his complaint, yet he need not prove this negative allegation, but the defendant must prove payment, if he relies upon it as a defense. The admission of the execution and ownership of the note established an indebtedness, and such indebtedness would be presumed to continue until it was shown to have been extinguished.

(Melone

Ruffino,

129 Cal. 514, [74 Am. St. Rep. 127, 62 Pac. 93];

Thompson

Thompson,

140 Cal. 545, [74 Pac. 21].)

There being no evidence in the record, it is impossible for us to determine whether payment or the other affirmative defense was established at the trial, and unless we can determine from the record that there was evidence given necessitating findings in defendants’ favor upon those defenses we cannot disturb the judgment for want of such findings. It will be presumed in support of the judgment that there was no evidence offered in support of those affirmative defenses.

(De Tolna

De Tolna,

135 Cal. 575, [67 Pac. 1045];

Woodham

Cline,

130 Cal. 497, [62 Pac. 398] ;

Winslow

Gohransen,

88 Cal. 450, [26 Pac. 504].) “The rule, then, is that an appellant from a judgment against him in the court below will not be heard to complain that the court failed to find upon some issue tendered by him, unless he brings up the evidence and thereby shows that he litigated that issue in the trial court and introduced evidence upon the issue which would have justified a finding in his favor. One reason for this rule is that, since he had the affirmative upon that issue, if he introduced no evidence, the finding would necessarily have been against him, and, therefore, he is not injured by

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the failure of the court to make a finding.”

(Estate of Carpenter,

127 Cal. 587, [60 Pac. 162];

Eva

Symons,

145 Cal. 202, [78 Pac. 648].)

Of course, a finding as to what was “due on the note” would have been a mere conclusion of law and entirely unnecessary. The amount due is a mere matter of calculation on the face of the note, the due execution of which and assignment to and consequent ownership in the plaintiff have been admitted by the pleadings. Of course, the defendants cannot be heard to complain that the judgment against them is for less than such computation shows to be due.

Appellants also complain that the findings of the court were entirely outside the issues, and this seems to be the fact. But such findings should be entirely disregarded, and cannot be ground for reversal. The judgment is within the ease as made by the complaint, and rests for support on the admission of the answer that the note was duly executed and is now in the hands of the plaintiff as the owner thereof; and these findings outside the issues are entirely unnecessary to the support of the judgment, and may be treated as mere surplusage.

I am therefore of opinion that the judgment should be affirmed as it stands, and upon this I concur in the judgment as reduced, upon the theory that the greater includes the less.

AI Brief

Synopsis

Opinion — Smith

SMITH, J.

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Concurrence — Gray

AI Brief